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Criminal - Border Control. R. v. Heath
In R. v. Heath (Ont CA, 2024) the Ontario Court of Appeal considers the 'right to silence', here in a border-crossing context:[43] It is helpful to commence with the impugned instruction. The trial judge told the jury that the appellant had a right to silence that was triggered upon arrest:[O]nce a person is detained that person has the right to make a free and meaningful choice about whether to speak or remain silent, and this right only becomes engaged after a person is detained. [44] Standing on its own, I agree with the appellant that this would be an incorrect statement of law. There is clearly a right to silence before detention: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 27. The right triggered upon detention is the right to counsel, and that right is essential so that detainees understand that their pre-existing right to silence continues post detention.
[45] Importantly, though, the trial judge’s instruction did not end there. He went on to contrast the post-detention environment with the pre-detention environment, within a border setting. Specifically, the trial judge told the jury that after detention, a person “does not have to speak to the CBSA or police officers. That person does not have to answer any questions.”
[46] Read in context, what the trial judge was doing here was informing the jury that in the special circumstances of border crossings, there is only a modified right to silence. Section 11(1) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), makes clear that an individual arriving in Canada “shall” present themselves to a border officer and “answer truthfully any questions asked by the officer in the performance of his or her duties”.
[47] The trial judge went on to contrast what happened after arrest in this case with what came before. The jury was reminded that immediately upon arrest, the appellant was cautioned by the arresting officer and then later by the RCMP officers when they arrived. The trial judge contrasted the post-arrest environment with what had come before and told the jury that “[p]rior to the time he was detained” anything the appellant said or did not say was evidence that could be used in considering the defence of duress.
[48] In the circumstances of this case, there was nothing wrong with this legal instruction. The appellant was entering Canada from abroad. Section 11(1) of the Customs Act applied and so the appellant was under a statutory duty to answer questions truthfully. Once he was arrested, that duty ended. Although the trial judge did not specifically frame his instruction in this way, in my view, all he was doing was informing the jury of the difference, in the airport context, between pre- and post-detention rights. . R. v. Pereira
In R. v. Pereira (Ont CA, 2023) the Court of Appeal considered the trigger for the engagement of Charter protections, here in a border services officer context:[3] The trial judge properly reviewed and applied the relevant jurisprudence and found that the border services officer had formed a particularized suspicion that the respondent was involved in the illegal importation of drugs. He rejected the border services officer’s testimony that, prior to arresting the respondent, he had no suspicion that she was in possession of narcotics. Applying the principles set out in this court’s decision in R. v. Ceballo, 2021 ONCA 791, at para 30, he found that the respondent had been detained and her s. 7 and s.10 (b) Charter rights were engaged since the border services agent had a sufficiently strong particularized suspicion and had made the subjective decision to engage in a more intrusive investigation. . R. v. Barac
In R. v. Barac (Ont CA, 2023) the Court of Appeal considers the law of border control:(1) The Charter Application
(a) Legal Framework
[16] This court recently set out the legal framework that applies to the inspection of travellers at the border in R. v. Ceballo, 2021 ONCA 791, 408 C.C.C. (3d) 70, which was released after the present trial was completed.
[17] The appellant in Ceballo was subject to a lookout that identified her as a target for contraband when she arrived at Pearson International Airport from St. Maarten. She was referred to secondary inspection, where the contents of her purse tested positive on an ION swab for cocaine. During the secondary inspection, the BSO asked Ms. Ceballo whether she had drugs strapped to her body and she admitted that she did. Ms. Ceballo was arrested and charged with importing cocaine. She appealed her conviction on the basis that she was detained prior to her arrest and her s. 10(a) and (b) Charter rights had been breached. This court unanimously rejected that argument.
[18] First, Paciocco J.A. noted that it is settled law that the importance of Canada’s effective control over its borders means that no person entering Canada reasonably expects to be left alone by the state: Ceballo, at para. 18; R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481 (C.A.), at para. 30. In this context,routine inspection of persons entering Canada is not stigmatizing, and principles of fundamental justice permit greater interference with personal autonomy and privacy than would ordinarily be acceptable in a free and democratic society: Ceballo, at para. 18. [19] As Paciocco J.A. observed, “[t]he concept of detention is tailored to this reality”, such that the restraints imposed upon a traveller to either comply satisfactorily with a customs inspection or be denied entry into Canada does not constitute detention for Charter purposes: Ceballo, at paras. 18-19.
[20] That said, the line between routine investigation and detention attracting Charter scrutiny is not always bright. As Paciocco J.A. noted in Ceballo, one way of identifying when the line has been crossed and a detention occurs is to look at the intrusiveness of the state action, keeping in mind that the importance of border security warrants “a robust concept of permissible ‘routine forms of inspection’”: at para. 21. For example, x-ray and ION scans, questions related to the contents of luggage and their provenance, questions intended to expose possible contraband, and questions intended to probe the credibility of the traveller’s answers are all routine forms of inspection: Ceballo, at para. 21. However, highly intrusive searches, such as strip searches, body cavity searches, and “bedpan vigils”, although permitted by s. 98 of the Customs Act, will trigger a finding of detention: Ceballo, at para. 22. As will questions that contain improper inducements, exert unfair pressure, or rise to the level of coercive or adversarial interrogation: Ceballo, at para. 22.
[21] The second way of identifying detention in the context of investigative questioning at the border was recognized in Jones. Writing for this court, Doherty J.A. left open the possibility that detention could be established where a BSO has subjectively “decided, because of a ‘sufficiently strong particularized suspicion’, to go beyond routine questioning” and “to engage in a more intrusive form of inquiry”: Jones, at para. 42. After considering some recent caselaw, Paciocco J.A. stated in Ceballo that it “may be” that for a detention to occur under this second approach, the BSO would additionally have to engage in some action that makes their subjective intention known to the traveller: at para. 26. This requirement would be consistent with the foundation for the constitutional concept of detention, which rests on the physical or psychological detention of the accused: Ceballo, at para. 26; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at pp. 515-21; R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, at pp. 557-58.
(b) Analysis
(i) The trial judge correctly summarized the law
[22] The trial judge applied the correct legal considerations despite not having the benefit of Ceballo.
[23] It is common ground that the central question on the Charter application was whether the lookout in this case took the border inspection beyond “routine” such that the appellant’s Charter rights were engaged before his arrest. The appellant argues that the lookout placed the appellant under criminal investigation such that the Charter applied from the moment he arrived at the border, or at the very least, from the moment the border authorities decided to break open the upper bunk where the methamphetamine was found.
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(iv) The warrantless search complied with the Customs Act
[40] There was no interference with the appellant’s reasonable expectation of privacy and therefore no breach of his s. 8 Charter rights.
[41] The trial judge concluded that the search of the appellant and his vehicle complied with the Customs Act, which places reasonable limits on an individual’s rights at the border. As such, there was no violation of the appellant’s s. 8 Charter rights.
[42] This was the inevitable outcome of the trial judge’s finding that the appellant was subject to nothing more than a routine customs examination. As this court held in Jones, routine questioning of travellers, the search of their luggage, and pat-down searches do not engage the rights protected by s. 8 of the Charter: at para. 32.
(2) The appellant’s answers to the BSOs’ questions were voluntary
[43] The appellant submits that his answers to the questions he was asked at the border were involuntary at common law and therefore inadmissible at trial. The core of his argument is that the compulsion to answer truthfully under the Customs Act operates as a threat within the meaning contemplated in R. v. Oickle, 2000 SCC 38, [2002] 2 S.C.R. 3. The appellant does not allege a violation of his s. 7 Charter right against self-incrimination, nor does he challenge the constitutionality of the Customs Act.
[44] It is settled law that statutory compulsion, on its own, does not render a statement involuntary at common law for the purpose of criminal proceedings: Walker v. The King, 1939 CanLII 2 (SCC), [1939] S.C.R. 214, at p. 217; Marshall v. The Queen, 1960 CanLII 18 (SCC), [1961] S.C.R. 123; R. v. Slopek (1974), 1974 CanLII 1553 (ON CA), 21 C.C.C. (2d) 362 (Ont. C.A.), at p. 365. The fact that the Customs Act allows for the imposition of fines and imprisonment makes no difference. So does the Highway Traffic Act, R.S.O. 1990, c. H.8, which was the statute at issue in Walker, Marshall, and Slopek.
[45] The appellant does not point to any other source of threat. Nor does he allege that the border authorities involved in this case made promises or created an atmosphere of oppression that could raise a reasonable doubt as to the voluntariness of his statements. Accordingly, this ground of appeal must fail.
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